Document Type : Original Article
Authors
1
PhD Student, Department of Private Law, Varamin Branch, Islamic Azad University, Varamin, Iran.
2
Assistant Professor, Department of Private Law, Varamin-Pishva Branch, Islamic Azad University, Varamin, Iran.
3
Assistant Professor, Department of Private Law, Varamin Branch, Islamic Azad University, Varamin, Iran.
Abstract
. In some cases, the judge, as a judge, is torn between exercising the will of the parties and observing the principle of fairness. On the one hand, it is obliged to preserve the principle of freedom of will, and on the other hand, it is obliged to apply the principle of fairness. In Article 23 of the Iranian Civil Code, Based on the rules of jurisprudence, it has given the judge the right to deviate from the principle of freedom in determining the terms of the contract in cases where a condition is incompatible with justice and this incompatibility is based on certain conditions. In this article, using the research method and analysis of library method and comparative study of jurisprudential rules, especially the rule of embarrassment and the rule of fraud, and the rule of Mysore, we seek religious attention to deviate from the principle of freedom in determining contractual terms using these jurisprudential sources. The British legal system seeks to use the experience of this system to discover solutions in order to maintain the validity of the principle of freedom to determine the terms of the contract in cases where its occurrence causes a distance from the main goals and the real purpose of the condition. Or another solution that can maintain the rule of will of the parties, based on which the judge can issue a verdict based on justice.
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